Brexit and Britain’s Changing Constitution

The Brexit saga which culminated in the sweeping victory of the Conservative Party in the parliamentary elections of December 2019 and the British withdrawal from the European Union the following months caused a major upheaval in the relationship between Britain’s main constitutional actors, especially between the government and the judiciary. In the course of the long-winded and acrimonious Brexit debate, the courts were repeatedly asked to intervene at critical junctures of the withdrawal process, first to secure a central role for Parliament in discussing and approving the terms of withdrawal and then to protect Parliament against attempts by the government to curtail and render ineffective this role through the questionable use of its prerogative powers. This development reached its climax with the UK Supreme Court’s judgment of 24 September 2019 on the unlawfulness of the prorogation of Parliament decided by the Queen on the advice of the Prime Minister in the run-up to Brexit, an unprecedented interference by the courts with the exercise of prerogative powers in the name of a functioning parliamentary democracy. While the reasoning of the Court does not appear entirely convincing, there can be no doubt that the ruling was crucial in upholding the central role of Parliament in the Brexit negotiations and, by implication, of the authority of the courts which had defined that role at the beginning of the negotiations. That the Supreme Court felt it necessary to take the unprecedented step of confronting the executive over the use of its prerogative powers in a highly polarized political debate also demonstrates the extent to which the political consensus which in former times had underpinned the functioning of Britain’s flexible constitutional democracy has broken down as a result of the Brexit debate, and the divisions it has engendered within Britain’s political class and in the public at large. This gives rise to the concern that the reforms announced by the Conservative government following its sweeping victory in the parliamentary elections of December 2019 will destroy any progress which had been made in the UK prior to the Brexit referendum towards a modern practice of parliamentary majority government based on incomplete but genuine checks and balances.